Do network neutrality rules violate Verizon's freedom of speech?

June 2nd marked the return shots fired by telecommunications juggernaut Verizon against the Federal Communications Commission for fines the FCC leveled on them in regards to network neutrality. In a legal brief filed in Washington DC at the United States Court Of Appeals, Verizon and regional cell phone provider MetroPCS formally appealed.

Verizon claims that the FCC forcing them to keep all data traffic equal priority is unconstitutional -- that equal priority of data is an affront to carrier's freedom of speech.

Backstory, Oh Sweet Backstory

Network neutrality is the concept that all bits should be treated equal. The cleanest example of this is the case of online video streaming. If you have an Internet connection from Comcast or Verizon, neither provider can limit, slow, or block the traffic of services such as Netflix, YouTube, Vudu, or Amazon streaming. The same concept would apply to online telephony services like Skype. Doing such to limit third party video competitors when your Internet provider also provides streaming services they are trying to sell would limit innovation and possible access to the open unfettered internet.

In 2007, two non-profit advocacy organizations, Free Press and Public Knowledge, filed a complaint with the FCC against Internet/television provider Comcast, which was discovered to have been limiting and, in some cases, blocking data to many of its customers using BitTorrent. The peer-to-peer technology is found in everything from the popular Blizzard game "World of Warcraft" to online legal file sharing services as well as illegal ones.

The complaint from Free Press and Public Knowledge stated that Comcast’s actions violated the FCC Internet Policy Statement, particularly the statement’s principle that “consumers are entitled to access the lawful Internet content of their choice... [and] to run applications and use services of their choice”. When the FCC tried to penalize Comcast under the jurisdiction granted by the Communications Act of 1934 (47 U.S.C. § 154), Comcast compiled with the penalization but then appealed in 2010 in the United States Court of Appeals for the District of Columbia. The appeals court ruled against the FCC, stating that it had overstepped its bounds in policing information technology infrastructure, authority not intended by the Communications Act of 1934. The FCC shortly thereafter registered a set of formal rules with the Government (September 2011).

Political Pawn in a Republicans vs Obama Debate

During the Comcast vs. FCC case, the Republican party started to beat the drum for the telecom industry. Frequently you would see elected Republican GOP officials in both the House and Senate come out with what seemed to be purposefully conflicting and confusing statements about what network neutrality was and actually meant and trying to peg the FCC as hampering the open Internet to block high tech jobs as an example of government over-regulation. Every major player of the GOP was coming out against the FCC with Republican Senate leader Senator Mitch McConnell of Kentucky being the first to signal the attack call in this statement:

At a time when the private sector would like to create jobs and grow the economy, it seems like too many in Washington want to create regulations and grow government. And so like many Americans, I was heartened two months ago, when the President came to the Capitol and laid out a very specific test for judging the merits of federal regulation ...

... But now, the FCC says its regulations are necessary because of what might happen in the future, if broadband providers have incentives to favor one type of content over another — despite the fact that after 15 years, there is no evidence of this occurring in any significant way,

House GOP Leader John Boehner (R-OH) joined shortly after the 2010 midterm elections saying:

The new House majority will work to reverse this [FCC Network Neutrality] unnecessary and harmful federal government power grab next year.

What was once a simple issue had now become a pawn in the Republicans vs. "Big Government" Democrats debate. Something so simple as making sure Internet service providers, who might have bias to preferential treatment of their own video and phone services, did not outright block competing 3rd party services was now unfair big government bureaucratic regulation. It didn't matter if companies like Comcast were blocking or slowing down the services of other online competitors and then planning on forcing them to pay to get back on equal footing. It was digital highway robbery via digital extortion or modern online protection rackets. Yet to the political players on the right it was still “Big Government” regulation "hampering" the "open internet's growth".

All Bits are Equal, but Some Bits are More Equal than Others

This is what brings us back to Verizon, with regional celluar carrier MetroPCS. In the FCC penalty appeal, Verizon is now trying to state that the FCC forcing them to keep all data traffic equal priority is unconstitutional. Verizon's lawyers are going so far as to say that the rules set in place to defend the customer's/consumer's rights of equal priority of the data is an affront to Verizon's freedom of speech.

Verizon sees the data running across its network as speech now. Even if it's your text, another company's movie or video, or someone's email or blog. It's all their speech now by this legal argument. Verizon also goes to say the FCC rules are "arbitrary and capricious." Basically stating that the fears of Verizon, or other companies, slowing down traffic or blocking services on their networks, for the sake of their own services, would never happen. But it has happened, numerous times already.

I just have to point out the recent case of Comcast video on Xbox Live. Comcast recently started offering TV channels via Xbox Live in an app but then said that the data that was used to transmit that video over your Internet connection doesn't count toward data transmission caps on users. These data transmission caps still apply to data sent via non-Comcast based services, such as Netflix, Amazon video streaming, and Vudu.

In the end if a decision like this happens in favor of Verizon, corporate telecom giants will have just gotten the legal go ahead for truly destructive and progress halting anti-competitive actions. It is only in an open Internet that innovation will flourish, not at the whim of large Telecom Barrons who can choke off the access to new upstart competitors. The deck is stacked in the major corporate favor and now more than ever we need to protect an open and free internet.